Appeal from the Whitley Circuit Court. The Honorable James R. Heuer, Judge. Cause No. 92C01-1111-CC-694.
ATTORNEY FOR APPELLANT: Patrick J. Murphy, State Farm Litigation Counsel, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: John C. Theisen, Nathaniel O. Hubley, Theisen & Associates, LLC, Fort Wayne, Indiana.
Bailey, Judge. Riley, J., and Barnes, J., concur.
[¶1] Steve Stewart (" Stewart" ) brought a negligence claim against Dawn Warrick (" Dawn" ) and Nathan Parish (" Nathan" ) (collectively, " the Warricks" ) after Stewart's motorcycle collided with the Warricks' loose dog, causing Stewart to suffer personal injury. A jury found that Stewart was seventy percent at fault and accordingly returned a verdict for the Warricks. After Stewart filed a motion to correct error, the trial court granted the motion, set aside the jury's verdict, and ordered a new jury trial. We affirm.
[¶2] The Warricks present one issue for review: whether the trial court abused its discretion when it granted Stewart's motion to correct error, set aside the jury's verdict as against the weight of the evidence, and ordered a new trial.
Facts and Procedural History
[¶3] At approximately 11:00 a.m. on October 11, 2010, a clear and dry morning, Stewart was driving his motorcycle south on Main Street in Columbia City, Indiana. After stopping for a red light at the corner of Main and Chicago Streets, Stewart turned left and headed east on Chicago. On his right, Stewart noticed a pickup truck beginning to exit the corner gas station onto Chicago. Concerned that the truck was going to pull out in front of him, he slowed down. When the truck driver braked and acknowledged Stewart, Stewart accelerated and continued east on Chicago. Stewart was looking forward, and in his peripheral vision, he did not see any cars coming from Whitley Street on his left.
[¶4] Seconds later, a dog darted into the street and collided with Stewart's motorcycle. He never saw the dog. Stewart gave conflicting testimony as to how many seconds elapsed between the time he braked for the truck and the time he hit the dog, but estimated his speed on impact as twenty-two to twenty-three miles-per-hour. He lost control of the bike, his helmet hit the pavement, and the motorcycle slid 102 feet to a stop. As a result of the crash, Stewart suffered injuries to his shoulder, collarbone, back, leg, and foot.
[¶5] Christopher LaRue (" LaRue" ) was driving a pickup truck about one hundred feet directly behind Stewart. From his vantage point, LaRue saw a dog, " running fast for a dog" (Tr. 157), dart out from behind a small concrete wall on the right side of the road and into Stewart's path. LaRue estimated that Stewart was traveling twenty miles-per-hour when he hit the dog. When asked whether LaRue thought Stewart could have done anything to avoid the collision, LaRue opined that " if I would have been on a motorcycle, I would have hit the dog." (Tr. 157.)
[¶6] Columbia City Police Officer Peter Yorg (" Officer Yorg" ) investigated the accident. Officer Yorg described the circumstances contributing to the crash as " the fact that the dog ran out in front of . . . the motorcycle and . . . the motorcycle . . . struck the dog and caused him to lose control." (Tr. 174.) Officer Yorg's investigation did not lead him to conclude that Stewart was at fault in any way.
[¶7] At the time of the crash, Nathan was inside the Chicago Street home he shared with his mother, Dawn. The Warricks had recently acquired two dogs, one for each of them, which they kept inside the house. The Warricks did not have a fence around their property; thus, when they let the dogs outside, they restrained each dog in the backyard using a cable
that attached to a yard stake on one end and the dog's collar on the other. On the morning of the crash, Nathan let the dogs outside on their staked cables. Shortly after, Nathan heard the accident commotion outside. After discovering Dawn's dog at the crash site, Nathan walked to the backyard where he found the escaped dog's collar still clasped shut and attached to the staked cable; apparently, the dog had slipped the collar.
[¶8] At trial, Dawn testified that she had fitted a new collar on the dog one week before the accident. However, Dawn admitted that the dog, which had obviously slipped out of the collar just before the crash, was not " properly restrained" and was " at large" in the city limits, in violation of Columbia City Ordinance section 90.03(K). Stewart's dog training expert, Michael Rowland, Jr. (" Rowland" ) testified that the collar was in good working order and the appropriate size for the dog. However, based on his review of the evidence, the only way the collar could come over the dog's head was if the collar was improperly fitted. Rowland testified that the breed's " head size is so much bigger than that area in the neck where [the ...